WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15

Court of Appeal for Ontario

Date: 2017-05-31

Docket: 57189

Judges: Weiler, Feldman and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

M.N. Appellant

Counsel:

• Heather Pringle, for the appellant
• Michelle Campbell, for the respondent

Heard: April 27, 2017

On appeal from: the order of Justice Hugh K. O'Connell of the Superior Court of Justice, dated May 14, 2013, dismissing an appeal from the conviction entered on September 4, 2009, by Justice J. Rhys Morgan of the Ontario Court of Justice.

Weiler J.A.:

A. Overview

[1] The appellant, M.N., was convicted of possession of child pornography pursuant to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46. The images were stored in the "temporary Internet files" on a computer he shared with his common law spouse. The couple's teenaged daughter also occasionally used the computer when she visited her parents.

[2] In convicting the appellant, the trial judge misapprehended the evidence of the Crown's expert witness as to how images can appear in a computer's temporary Internet files, or "cache". This misapprehension led him to reject the appellant's evidence that he was unaware of the presence of child pornography on the computer and conclude that the appellant had downloaded the images. The trial judge therefore determined the appellant had the requisite knowledge and control of the images and entered a conviction for possession of child pornography.

[3] The appellant appealed to the summary conviction appeal court. The summary conviction appeal judge similarly misapprehended the expert evidence and dismissed the appeal.

[4] The appellant, although having served his sentence of six months' imprisonment, seeks leave to appeal to this court and, if leave be granted, asks that this court set aside his conviction and enter an acquittal.

[5] The respondent Crown consents to leave to appeal being granted on the basis of the misapprehension of the expert's evidence, but does not agree that this court should enter an acquittal. The respondent makes two arguments. First, "accessing" child pornography is an offence included in the offence of possession. The appeal should therefore be dismissed under s. 686(1)(b)(i) of the Code because the appellant was properly convicted on another count or part of the indictment. Second, and in the alternative, the respondent submits that it is in the interests of justice to amend the information pursuant to s. 683(1)(g) of the Code to accord with the evidence on which the trial judge based his finding that the appellant accessed child pornography.

[6] For the reasons that follow, I would agree that leave to appeal should be granted. I would hold that accessing child pornography is not intrinsically included in the offence of possession of child pornography. I would also not give effect to the respondent's argument that the information should be amended to substitute a charge of accessing child pornography. To do so would prejudice the appellant and would therefore not be in accordance with the interests of justice.

[7] Accordingly, I would grant leave to appeal, allow the appeal, and enter an acquittal for the offence of possession of child pornography.

B. Proceedings Below

(1) Trial in the Ontario Court of Justice

[8] At the appellant's trial, he testified that his common law spouse, B.S., discovered images depicting child pornography on her computer (which they shared). She showed him what she had found, and they decided to call the police. The police came the same day – February 4, 2007 – and found 55 images of child pornography in the temporary Internet files folder on the computer. Although the appellant freely admitted that he possessed adult pornography, he denied any knowledge of the images of child pornography on the computer. He also said if he downloaded any images of child pornography, it was unintentional and he must have been drunk at the time.

[9] R.N., the daughter of M.N. and B.S., was 14 years old at the time the child pornography was discovered. She did not live with her parents, but she testified she occasionally used their computer when she visited, including to sometimes access adult pornography. On one occasion, she used the computer to access an adult pornography site and a child pornography site "popped up". She shut down the computer without downloading the pornography. At the appellant's trial, on May 28, 2009, she testified that this incident had occurred "a couple of years ago".

[10] The Crown had called Michael Ryder as a witness. Ryder is a civilian designated as a special constable in the Electronic Crimes section of the Ontario Provincial Police. Ryder had conducted a forensic analysis of B.S.'s computer and had prepared a report. The trial judge qualified Ryder to give opinion evidence with respect to forensic computer analysis.

[11] Ryder testified that temporary Internet files are created when a person uses a web browser, like Internet Explorer, and these files are automatically saved as "cached" files. In addition, two files on the computer were found on Google Desktop, an application that also caches websites that might be revisited.

[12] The essential elements of possession of child pornography are knowledge and control. These elements are common to both personal possession and constructive possession: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15.

[13] The trial judge found the appellant had knowledge of the child pornography. The trial judge rejected the appellant's evidence that he did not know the images were on his computer. He found that the appellant had accessed the images over the Internet.

[14] In regard to the second essential element, the exercise of control, the trial judge misapprehended Ryder's evidence and concluded that the files could not have ended up in the computer's temporary Internet folders without a deliberate act to download and save them there. On that basis, he inferred that the appellant had downloaded the child pornography, thereby exercising some control over the content stored in the temporary Internet files.

[15] On September 4, 2009, the trial judge convicted the appellant of possession of child pornography. On October 22, 2009 the appellant was sentenced to six months' imprisonment. He has since served that sentence.

(2) Appeal to the Summary Conviction Appeal Court

[16] The appellant appealed his conviction to the summary conviction appeal court and represented himself on appeal. Amongst other issues, he argued that the trial judge misapprehended Ryder's evidence about how cached images get into computer memory.

[17] The summary conviction appeal judge also misapprehended the evidence as to how images come to be saved in a temporary Internet cache. He found the evidence against the appellant substantiated the conviction for possession of child pornography and he accordingly dismissed the appeal.

C. Issues

[18] The issues raised on this appeal are:

1. Should leave to appeal be granted?
2. Is accessing child pornography a lesser included offence of possession of child pornography?
3. If not, is it in the interests of justice to amend the information to charge the appellant with accessing child pornography and to enter a conviction for that offence?

D. Analysis

(1) Leave to appeal should be granted.

[19] As discussed, the respondent consents to leave to appeal being granted and acknowledges there is insufficient forensic evidence to support a finding that the appellant had the necessary mens rea to possess child pornography. I agree.

[20] The question of whether an accused person can be said to be in culpable possession of a cached visual depiction alone, while perhaps a live issue at the time of the appellant's trial in 2009, was definitively answered by the Supreme Court of Canada in 2010. In Morelli, referenced above, Fish J. held, at para 19:

[P]ossession of an image in a computer means possession of the underlying data file, not its mere visual depiction. [Emphasis in original.]

[21] He explained, at para. 14:

In my view, merely viewing in a Web browser an image stored in a remote location on the Internet does not establish the level of control necessary to find possession. Possession of illegal images requires possession of the underlying data files in some way. Simply viewing images online constitutes the separate crime of accessing child pornography, created by Parliament in s. 163.1(4.1) of the Criminal Code. [Emphasis in original.]

[22] Fish J. concluded, at para 31, "Plainly, the mere fact that an image has been accessed by or displayed in a Web browser does not, without more, constitute possession of that image." At paras. 35-36, he considered how the Court's understanding of possession applied to files in an Internet cache as follows:

When accessing Web pages, most Internet browsers will store on the computer's own hard drive a temporary copy of all or most of the files that comprise the Web page. This is typically known as a "caching function" and the location of the temporary, automatic copies is known as the "cache".

On my view of possession, the automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a "place" over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Thus it must be shown that the file was knowingly stored and retained through the cache. [Emphasis in original.]

[23] After commenting that most computer users are unaware of the contents of their cache, how it operates, or even its existence, Fish J. held that absent that awareness, "they lack the mental or fault element essential to a finding that they culpably possess the images in their cache": Morelli, at para. 37.

[24] Fish J. acknowledged that there could be rare instances where a person knowingly used the cache "as a location to store copies of image files with the intent to retain possession of them through the cache" (emphasis in original): Morelli, at para. 27. There is no evidence that this case is one of those rare instances. Thus, quite apart from the misapprehension of Ryder's evidence, the existing jurisprudence would lead to the conclusion that the appellant was not guilty of possession of child pornography.

[25] I would therefore agree that leave to appeal should be granted. Section 839 of the Code provides for leave to appeal from a summary conviction to "be taken on any ground that involves a question of law alone".

[26] Justice Doherty elaborated on the requirements of s. 839 in R. v. R.R., 2008 ONCA 497, 59 C.R. (6th) 258, in which he identified two key variables respecting the question of law raised: (1) the significance of the question of law to the general administration of criminal justice; and (2) the strength of the proposed appeal. The effect of these two variables is that leave may be granted in an arguable (although not strong) appeal where the issues have broader significance to the administration of justice. Similarly, leave may be granted where the merits appear very strong, even if the issues are not of general importance, especially if the conviction in issue is a serious one involving a significant deprivation of liberty: R.R., at para. 37.

[27] Both variables set out in R.R. support granting leave to appeal in this case. First, the question of law raised, namely, "Is accessing child pornography an included offence for possession of child pornography?" has significance to the administration of justice beyond the four corners of this case.

[28] Second, the merits of the appellant's appeal for possession of child pornography are very strong, having regard to: (a) the misapprehension of the expert's evidence at trial, (b) a similar misapprehension of that evidence on appeal to the summary conviction appeal court, as well as (c) the Supreme Court's decision in Morelli. In addition, not only is the conviction in issue a serious one that involves the risk of a significant deprivation of liberty, it carries a minimum sentence of imprisonment, and the appellant has already been deprived of his liberty for six months. It appears that a miscarriage of justice occurred. Further, the appellant continues to suffer the stigma associated with having to report under the Sexual Offender Information Registration Act, S.C. 2004, c. 10, for a period of ten years.

[29] For all of these reasons, I would grant leave to appeal.

(2) Accessing child pornography is not intrinsically a lesser included offence of possession of child pornography.

[30] The respondent submits that this court can substitute a conviction for accessing child pornography pursuant to s. 686(3) of the Code because accessing is a lesser included offence of possessing child pornography.

[31] In R v. R.(G.), 2005 SCC 45, [2005] 2 S.C.R. 371, at paras. 25-34, the Supreme Court held that an offence is "included" in the offence charged in three instances:

i. the offence is expressly stated as an included offence in the Criminal Code (s. 662);

ii. the offence's elements are embraced in the offence charged as described in the enactment creating it; or

iii. the offence's elements are embraced in the offence charged as described in the information or indictment.

The underlying principle is that the accused must have fair notice of the included offences he or she must meet: R. (G.), at para. 27.

[32] Accessing child pornography is not stated as an included offence under s. 662(2) to (6) of the Code. The first instance cited above does not apply. Nor does the information describe accessing as part of the manner in which the offence of possession was committed. The third instance does not apply.

[33] With respect to the second instance, the enactment creating the offence charged – possession of child pornography – is s. 163.1(4) of the Code. It states that every person who possesses any child pornography is guilty of an indictable offence, or an offence punishable on summary conviction. The question is, therefore, whether the offence of accessing child pornography is embraced in the offence of possession.

[34] Accessing is contained in s. 163.1(4.1) of the Code, which similarly states that every person who accesses any child pornography is guilty of an indictable offence, or an offence punishable on summary conviction. Subsection (4.2) defines "accessing":

For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.

[35] The first definition of the word "transmit" or "transmitted" in the Canadian Oxford Dictionary, 2d ed. (Toronto: Oxford University Press, 2004), at p. 1654, is "pass or hand on; transfer".

[36] The Crown submits that "it is legally impossible to possess child pornography without at some point accessing it." I disagree.

[37] For example, if someone downloaded child pornography onto a memory stick and gave that memory stick to the appellant, and the appellant knew the memory stick contained child pornography, the appellant would be in possession of child pornography. He would have knowledge of the contents of the memory stick and control over those contents; therefore the elements of possession would be satisfied. He would not be guilty of accessing child pornography because he has not viewed the images on the memory stick nor has he transmitted them to himself.

[38] As the above example illustrates, it is possible to possess child pornography without accessing it. The elements of the offence of accessing are not intrinsically embraced within the offence of possession.

[39] My conclusion is also consistent with Morelli, at para. 27, where Fish J. observed that "viewing and possession [of child pornography] should … be kept conceptually separate". (emphasis added.)

[40] I note further that the penalty for included offences is generally a lesser penalty in part because the moral culpability is less than for the original offence charged. The penalty for accessing child pornography and for possession of child pornography is identical. With respect to both, if found guilty pursuant to an indictment, the sentence is a minimum term of imprisonment of one year and a maximum term of ten years; if found guilty pursuant to summary conviction, the sentence is a minimum term of imprisonment of six months and a maximum of two years less a day. Thus, Parliament has indicated the moral culpability is the same.

(3) It is not in the interests of justice to amend the information to charge the appellant with accessing child pornography and to enter a conviction for that offence.

[41] I now turn to the Crown's secondary submission that this court should amend the information pursuant to s. 683(1)(g) of the Code so that it conforms to the trial judge's finding that the appellant viewed child pornography. Section 683(1)(g) states:

For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

(g) amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.

[42] By analogy, this court may also amend an information: R. v. Brownson, 2013 ONCA 619, 7 C.R. (7th) 327, at para. 20.

[43] I do not consider it to be in the interests of justice to amend the information and enter a conviction for accessing child pornography. Even if, based on the manner in which the case was presented, the appellant would have appreciated that accessing child pornography was a live issue at his trial, the trial judge's misapprehension of the evidence was central to his rejection of the appellant's credibility. Indeed, in its factum, the respondent concedes,

[The trial judge's and the summary conviction appeal judge's] misapprehension [of the evidence] impacted the finding at trial, upheld on appeal, that the Appellant had the necessary mens rea for the offence of possession of child pornography pursuant to s. 163.1(4) of the Criminal Code.

[44] It is impossible to measure the extent to which the trial judge's misapprehension of the evidence affected his assessment of the appellant's credibility concerning his mens rea. Suffice it to say, that misapprehension was central to the trial judge's reasoning. The appellant would be severely prejudiced if this court were to substitute a conviction for accessing child pornography for the count of possession in this case.

[45] In oral submissions, the respondent submitted that if this Court was concerned about substituting a conviction for accessing child pornography, it should consider amending the information and ordering a new trial. In my opinion, this would not cure the prejudice to the appellant created by amending the information for the first time on appeal.

[46] The time that has passed between the appellant's trial in January 2009 and this second appeal, heard in April 2017, and the additional expense and effort the defence would need to incur to defend such a charge, together with the fact that the appellant has already served his sentence for possession of child pornography, exacerbates the prejudice to the appellant. It would not be in the interests of justice for further proceedings to ensue.

E. Disposition

[47] Accordingly, I would grant leave to appeal, set aside the conviction for child pornography and enter an acquittal.

Released: May 31, 2017

"Karen M. Weiler J.A."

"I agree. K. Feldman J.A."

"I agree. Grant Huscroft J.A."